Author Archive | Jim Lindgren

Was “Undecided” Questioner Catherine Fenton Former Media Coordinator of CodePink Long Island? [UPDATE: Probably not]

How good was Gallup’s vetting of the questioners at the 2d Presidential debate held at Hofstra on Long Island?

One explicitly feminist question was asked by undecided voter Catherine Fenton:

And it’s Katherine Fenton, who has a question for you.
QUESTION: In what new ways to [do] you intend to rectify the inequalities in the workplace, specifically regarding females making only 72 percent of what their male counterparts earn?

By a strange coincidence, there happens to be a Catherine Fenton who in 2008 identified herself as the Media Coordinator of CodePink Long Island.

Is she the same Catherine Fenton? Presumably we will be able to determine this over the next few days. [UPDATE: Orin points out that the questioner seems too young for the CodePink official. I think he’s probably correct.]

For now, it is worth noting that the CodePink Fenton discussed whether feminists in March 2008 should support Hillary Clinton, Barack Obama, or a third-party candidate:

As a liberal, I believed and still do believe, that after the complete and abject failure of conservatism, we should have been heralding in a President Al Gore, or if not, then a President John Edwards. Barack Obama is not my first choice. But as he did vote yes on banning cluster bombs in civilian areas, and speak out against this war before it happened, perhaps he is the better choice. Perhaps a third party candidate is a better choice for you. These are matters of individual conscience. But Hillary is not the answer.

And I’m not turning my feminist card in.


Catherine Fenton
Media Coordinator
CODEPINK Long Island

The CodePink Fenton seems to argue that Hillary Clinton is not reliably left wing enough for her tastes.

More here and here.

UPDATE: Because probably few [...]

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Over 30% of President Obama’s 2009-2011 Gross Income Came From Foreign Sources

I find it strange that the Obama campaign would be making so much of Romney’s income from foreign sources when Obama’s foreign source income appears to be a much bigger percentage of his income over the last few years. Of course, one can’t tell for sure because Mitt Romney has not released his 2009 tax return.

Yet in the three tax years in which Barack Obama has been President (2009, 2010, and 2011), fully 30.1% of the Obamas’ gross income has come from foreign sources: ($2,711,340 out of a 3-year total gross income of $8,993,449).  In 2009, 26.5% of the Obamas’ gross income came from foreign sources. In 2010 it was a whopping 41.4%, and in 2010 it was 30.2%.

The salary that we taxpayers pay him as President (just under $1.2 million over the 3 years) accounted for less than 13% of the Obamas’ income, a share dwarfed by their 30% from foreign sources over the same period.

From 2009 through 2011, the Obamas paid $87,429 in foreign taxes, which they applied toward a credit to reduce their U.S. tax bill.  The amounts I examined are reported on Form 1116, of which there are two filed along with their 1040 when they had both general and passive foreign income.

Their returns do not disclose which foreign countries are responsible for paying the Obamas the $2.7 million in foreign source income, but the overwhelming bulk of it must come from payments resulting directly or indirectly from book sales.  Nonetheless, the Obamas did report a total of $3,611 in foreign passive income in 2009 and 2010, a type of income that most often results from investments in foreign countries.  Like some of the foreign investments for which Romney has been pilloried, this Obama passive foreign income might [...]

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“If you want this robe, you’ll have to pry it from my cold, dead hands”: Justices Retiring Later, Often Waiting for a Change in Presidents

As people discuss whether Justice Roberts avoided politics by siding with the left side of the Court or instead yielded to political pressure to change his vote, I want to point to an article that I posted on SSRN a couple of days ago.  It shows that Supreme Court justices do tend to act politically in one respect: They tend to retire or take senior status strategically to favor the party of the president who appointed them.

My co-author, Rafe Stolzenberg, and I also plot how much older the justices have become in the last half-century.


Figure 1

Means of Sitting Justices’ Age at Oath, Age, Eventual Age at Departure From Court, and Eventual Age at Death (in order listed) Versus Calendar Year
Note: Lines are fitted and smoothed by Cleveland’s locally weighted regression (LOWESS).

Note that, while the age at oath has changed little in the last 150 years, the age of the sitting justices and the eventual age at departure have both increased in the last half-century (the latter markedly).

We also made a large number of methodological improvements on prior work. For example, most studies had assumed that the longer justices served, the more likely they were to retire. If that were true, that would be a strange job. In most jobs, once people settle in, they are more likely to stay, rather than more likely to leave. Indeed, our analysis shows that it is not until justices reach their 25th year of tenure on the Court that an additional year on the Court makes them more likely to retire. Before that, each additional year of service makes them instead more likely to stay on the Court. Some of the odd results of prior studies on strategic retirement might in part reflect their using a linear [...]

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Justices Time Their Retirements According to Political Party

Do U.S. Supreme Court justices tend to try to time their retirements to help the political party of the president who appointed them? University of Chicago sociologist Rafe Stolzenberg and I have an article in the journal Demography that finally answers that question: Yes, justices do act politically when deciding whether to retire or take senior status.  One interesting finding is that since 1789 justices have been more likely to die in office when the party of the current president is different from the party of the president who appointed him.

Our paper, “Retirement and Death in Office of U.S. Supreme Court Justices,” can be downloaded at SSRN.

Here is the abstract [abstract revised after posting]:

In this study, we construct demographic models of retirement and death in office of U.S. Supreme Court justices, a group that has gained demographic notice, evaded demographic analysis, and is said to diverge from expected retirement patterns. Models build on prior multi-state labor force status studies and data on justices permit an unusually clear distinction between voluntary and “induced” retirement. Using data on every justice from 1789 through 2006, with robust, cluster-corrected, discrete time, censored, event history methods, we (1) estimate retirement effects of pension eligibility, age, health, and tenure on the timing of justices’ retirements and deaths in office, (2) resolve decades of debate over the Politicized Departure Hypothesis that justices tend to alter the timing of their retirements for the political benefit or detriment of the incumbent President, (3) reconsider the nature of rationality in retirement decisions, and (4) consider the relevance of organizational conditions as well as personal circumstances to retirement decisions.

Computing robust standard errors with adjustments for clustering by justice, we find that the odds that a justice will retire (or resign or take senior status) in

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Peter Gleick’s Possible Involvement in Drafting Fake Heartland Document: Either Not Investigated or the Relevant Results Not Released

After an investigation commissioned by the Pacific Institute, Peter Gleick has been reinstated as its President.  The Institute released a carefully worded statement saying that the investigation supported what Gleick had said “regarding his interaction with the Heartland Institute.”  Gleick had eventually admitted that he had pretended to be a board member of Heartland to obtain non-public materials from them.  Once Gleick confessed to this, that much was not in dispute.

But the part that was still open to dispute involved the fake document that was not obtained through Gleick’s “interaction with the Heartland Institute.”  Gleick claimed that someone anonymously sent it to him “in the mail.”  Thus, he was not claiming that it came through “his interaction with the Heartland Institute.”

Remember: based on the language, content, and document properties, Gleick was identified by some commentators as the likeliest author of that fake document even before Gleick came forward to admit his role in feeding both the real and the disputed (i.e., fake) Heartland documents to bloggers.  What a coincidence that the author of the fake document used some phrases that Gleick favors, that the document inflated Gleick’s importance, and that Gleick admitted passing the document to others, but yet he didn’t write it (or so he claims)!

So what does the Pacific Institute have to say about the fake document that everyone agrees did not come from Gleick’s interaction with the Heartland Institute?  Absolutely NOTHING!


The Pacific Institute is pleased to welcome Dr. Peter Gleick back to his position as president of the Institute. An independent review conducted by outside counsel on behalf of the Institute has supported what Dr. Gleick has stated publicly regarding his interaction with the Heartland Institute. This independent investigation has further confirmed and the Pacific Institute is

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Can the Consent of Individuals or States Enlarge Federal Power?

Philip Hamburger has posted on SSRN the proofs of his article, “Unconstitutional Conditions: The Irrelevance of Consent,” which will be published soon by the Virginia Law Review.
Although the article does not address the current healthcare litigation, I want to draw attention to it, because its thesis is relevant to a question posed by the Supreme Court: whether the healthcare legislation unconstitutionally commandeers the states.
Hamburger argues that private or state consent cannot relieve the federal government of the limits imposed on it by the Constitution’s structures or rights. He notes out that these structures and rights are legal limits–indeed, are legal limits imposed by the people–and that the federal government therefore cannot escape them simply by getting the consent of any sub-group, whether individuals, institutions, or states. As he points out, “Private or state consent cannot enlarge federal power.” (Page 185.)
This point may seem counter-intuitive as to rights because it is assumed that rights belong to individuals, who therefore should be able to relinquish them. Hamburger explains, however, that the vision of tradeable rights fails to recognize that constitutional rights are not personal property rights, but are legal limits on government. This, in turn, leads to the distinction between leaving a constitutional right unexercised and empowering government.
An individual or state can decline to exercise a right, but it cannot empower the federal government to do what the Constitution forbids.
Similarly, when it comes to the Constitution’s structural limits on the federal government, they remain in place, regardless of individual or state consent.  Thus, this is where the argument matters for the healthcare litigation. The anti-commandeering principle has thus far been understood as a constitutional limit on the federal government, arising from the federal structure of the Constitution. Accordingly, under Hamburger’s analysis, though it could be
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Hendrik Hertzberg Endorses Supreme Court Term Limits

In the latest New Yorker, Hendrik Hertzberg endorses 18-year term limits for Supreme Court justices, relying on a paper that Steve Calabresi and I published in 2006.

Hertzberg considers this reform the one good idea put forward by the now-defunct campaign of Texas Governor Rick Perry:

This ingenious idea has been kicking around in legal circles for decades. It tiptoed into wider view in 2002, via a Washington Post op-ed piece by two prominent law professors of opposite ideological and political leanings: Yale’s Akhil Reed Amar, a Democrat, a former clerk for Stephen Breyer, and a stalwart of the liberal American Constitution Society; and Northwestern’s Steven G. Calabresi, a Republican, a former clerk for Antonin Scalia, and a co-founder of the conservative Federalist Society. In 2006, Calabresi and his colleague James Lindgren fleshed the idea out in a long article in the Harvard Journal of Law & Public Policy. Justices would still get lifetime appointments. After their eighteen years with the Supremes, they could choose to serve on other federal courts, bringing their experience and, in some cases, their wisdom to the appellate bench. Even if they didn’t exercise that option, though, their salaries would continue for life. If a Justice died or retired before his or her eighteen years were up, a substitute would be appointed via the usual process—Presidential nomination, Senate confirmation—to serve out the remainder. The interim Justice would not be eligible for reappointment to the Supreme Court, but he or she would have the same sweet post-Court deal. And what lawyer wouldn’t jump at the chance to be a Justice of the highest of high courts, if only for a year? . . .

From 1789 through 1970, the average tenure of a Supreme Court Justice was about fifteen years. For Justices who have

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AP: 4 of 6 Republicans Hold Seats in Wis. Recall; Republicans Retain Control of Wis. Senate

According to the AP, 4 Republican state senators in Wisconsin have been re-elected, while 2 have lost their seats to Democrats. The Republicans thus continue to hold a majority in that chamber of the Wisconsin legislature.

The last race to be called was in the 8th District. Twelve Milwaukee precincts seem to have been withheld for a very long time, leaving open the possibility of the Democrat (Pasch) overtaking the Republican (Darling). But other Wisconsin news outlets have collected results from almost all of the outstanding precincts and Darling’s lead is holding up (tip to HuffPo relaying counts of the Patch).

UPDATE (2am ET): All but one of the Milwaukee precincts have now reported and Darling’s lead remains substantial. It’s over . . . . [...]

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After Debt Deal, Sunday Night Dow Futures Up 178 Points

Just before 9pm ET on Sunday night, Dow Jones Industrial futures are up 178 points and S & P 500 futures are up 20 points.

UPDATE: On Monday in Asia (Sunday night in the US), the stock markets in Japan, China, Australia, and South Korea are up 1.3% to 1.9%.

2D UPDATE (Monday afternoon): Though the Dow hit 140 points UP shortly after the opening on Monday morning, it quickly reversed, hitting 140 points DOWN at the low. By 3:15pm ET, the Dow had recovered to down 39 points.

3D UPDATE (Monday market close): The Dow closed down only 11 points (0.09%), while the NASDAQ and S & P 500 closed down 0.4%. [...]

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Norwegian Terror Suspect Arrested [UPDATE: Motives May Be Nationalist and Anti-Islamic]

A suspect has been arrested in the Norwegian terror attacks. According to VGNett, his name is Anders Behring Breivik:


An automated Google translation of a story at VG Nett (the web site of a national newspaper in Norway) includes this passage (sorry, I don’t read Norwegian, so I can’t vouch for the translation):

Critical of Islam

In online debates marks Anders Behring Breivik as well read, and one with strong opinions about Norwegian politics. He promotes a very conservative opinions, which he also called nationalist. He expresses himself strongly opposed to multiculturalism – that cultural differences can live together in a community.

Breivik has had many posts on the site, an Islam-critical site that publishes news and commentary.

In one of the posts he states that politics today no longer revolves around socialism against capitalism, but that the fight is between nationalism and internationalism. He expressed clear support for the nationalist mindset.

Anders Breivik Behring has also commented on the Swedish news articles, where he makes it clear that he believes the media have failed by not being “NOK” Islam-critical.

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Credit for Oslo Attacks Retracted

A couple of hours ago, the New York Times reported that a terrorist group took credit for the attack:

A terror group, Ansar al-Jihad al-Alami, or the Helpers of the Global Jihad, issued a statement claiming responsibility for the attack, according to Will McCants, a terrorism analyst at C.N.A., a research institute that studies terrorism. The message said the attack was a response to Norwegian forces’ presence in Afghanistan and to unspecified insults to the Prophet Muhammad. “We have warned since the Stockholm raid of more operations,” the group said, according to Mr. McCants’ translation, apparently referring to a bombing in Sweden in December 2010. “What you see is only the beginning, and there is more to come.” The claim could not be confirmed.

Now Will McCants, the Times’s source, reports that this claim of credit has been retracted:

This [claim of credit in Arabic] was posted by Abu Sulayman al-Nasir to the Arabic jihadi forum, Shmukh, around 10:30am EST (thread 118187). Shmukh is the main forum for Arabic-speaking jihadis who support al-Qaeda. Since the thread is now inaccessible (either locked or taken down), I am posting it here. I don’t have time at the moment to translate the whole thing but I translated the most important bits on twitter.

Update: Abu Sulayman has now issued a retraction, stating clearly that “Helpers” was not involved in the operation and that his statement was not an official statement. He says those who carried out the attacks “must surely be known to all.”

I assume that Abu Sulayman is implying that al-Qaeda (or an al-Qaeda-linked group) is responsible. [...]

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Wisconsin Senate Recall Primary Results [Update: All the Regular Democrats Win]

If you want to follow the results of Wisconsin’s Senate recall primary, you might go to the Journal-Sentinel’s site.

Early results show that the “real” Democratic candidates are beating the Republican-sponsored “fake” or “protest” Democratic candidates by about a 2-to-1 margin, except in District 14, where the real Democrat Fred Clark leads Rol Church by a still substantial 16% with 10% of precincts reporting.

UPDATE: With 3% reporting in District 8, the real Democrat, Sandy Pasch, is trailing Gladys Huber by 16%. The identities of the candidates in each race are set out here.

2D UPDATE: With 16% reporting in District 8, Sandy Pasch has taken a large 50% lead over Gladys Huber.

3D UPDATE: Only one race is now close: In District 10, the real Democrat, Shelly Moore, leads Isaac Weix by only 6%, with 35% [then 54%] of precincts reporting.

4TH UPDATE: Moore has extended the lead over Weix to 8% with 77% [then 84%] reporting.

5TH UPDATE: With 91% reporting, the Journal Sentinel calls the race for Moore, the real Democrat. Thus, all the regular Democrats appear to have won their primaries. [...]

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Philip Hamburger Manuscript: “Consent No Cure for Unconstitutional Conditions”

Professor Philip Hamburger of Columbia University appreciated the scholarly comments he received from Volokh Conspiracy readers last year when I blogged his Privileges or Immunities article. He therefore has now asked me to seek comments on another manuscript, this one called “Consent No Cure for Unconstitutional Conditions.” The abstract summarizes:

Although consent is said to justify unconstitutional conditions, consent is no cure. Of course, within the government’s constitutional authority, consent often is a measure of what the government can do. But outside such authority, it is another matter. Constitutional powers and rights are legal limits imposed by the people. Therefore the consent of mere individuals, states, or private institutions cannot justify the government in going beyond these limits.

Though I have just skimmed the piece, it appears very interesting and important, for it takes a new approach to unconstitutional conditions. In essence, it explores whether the federal government can cure an unconstitutional action by obtaining someone’s consent to do what it wants to do. The paper can be found at SSRN. If you have suggestions, you may email him at Columbia (his email address is listed at SSRN, if you click on his name in the abstract). [...]

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